Garner files response to POA's motion

Wednesday

In a motion filed April 10, Hot Springs Village property owner Gene Garner asks Saline County Circuit Court to deny the HSV Property Owners’ Association’s request to dismiss his lawsuit.

The POA contends its board has the right to amend protective covenants, telling the judge the issue was settled in a Garland County Circuit Court ruling in a previous lawsuit filed by Garner, later affirmed by the Arkansas Court of Appeals.

But Garner tells Judge Grisham Phillips the POA’s change to protective covenants did not invole a simple amendment. “Subsequent to the issuance of the mandate in the other matter, the board revoked and replaced the original 32-paragraph, 3-page protective covenants with a 119-page city code-like protective covenants.

“In other words, the board did not amend the protective covenants, but rather created a Comprehensive Master Plan and completely overhauled the Declaration and protective covenants that directly affect the residents’ daily lives,” he asserts.

“Neither the Court of Appeals nor the Garland County Circuit Court were faced with a question regarding the board’s authority to revoke and replace the restrictions that had been in place for over 40 years with all-new and all-different covenants,” Garner contends. “This court is presented with a new and entirely different question – as stated in Count 1 of the complaint – by adopting a “Comprehensive Master Plan,” under the guise of an amendment to the protective covenants, creating over 100 pages of new restrictions, did the board revoke the previous protective covenants?” If it did so, Garner says, the board did so in the absence of clear language in the covenants to do so.

The POA contends the expanded protective covenants came from existing requirements expressed in many documents, including permit applications, and that many of the additional pages solely affect contractors.